HEALTH AND SAFETY CODE
SECTION 25395.102-25395.106
25395.102. (a) Except as otherwise provided in this article, the
definitions in Article 2 (commencing with Section 25395.63) and
Article 6 (commencing with Section 25395.90) shall govern the
interpretation of this article.
(b) "Bona fide ground tenant" means a person who establishes by a
preponderance of evidence and maintains all of the following:
(1) The person acquires a nonfee interest in, and control of, the
real property at a site on or after January 1, 2007, pursuant to one
of the following:
(A) A ground lease with a term of 25 years or more.
(B) An easement with a term of 25 years or more.
(C) Any other legal means for site access and use that provides
for a term of 25 years or more, and is acceptable to the agency
entering into an agreement pursuant to this article.
(2) The person is in compliance with subdivisions (c), (d), (e),
and (f) of Section 25395.80.
(3) All releases of hazardous materials at the site occurred
before the person obtained legal access to and control over the site,
except for a release that is of a type, nature or amount that does
not require reporting to a regulatory authority pursuant to
applicable law or other applicable statutory or regulatory reporting
requirements and for which the agency determines all appropriate
actions have been taken.
(4) The person did not cause or contribute to a release of
hazardous materials at the site, other than a release that is of a
type, nature or amount that does not require reporting to a
regulatory authority pursuant to applicable law or other applicable
statutory or regulatory reporting requirements.
(5) (A) The person has contractually agreed with one or more
persons or entities set forth in subdivision (a) of Section 25395.103
that either of the following revenue sources be dedicated to, or
pledged to secure a loan the proceeds of which are dedicated to,
implementation of the response plan approved pursuant to this
article:
(i) All payments by that person to the site owner, at least until
such time as a response plan has been approved by the agency and the
agency has determined that something less than all of the payments
are sufficient to implement the response plan.
(ii) Any alternate assets or revenue streams that are acceptable
to the agency.
(B) To ensure that the revenue stream required by subparagraph (A)
remains available to implement the response plan approved pursuant
to this article, the person may utilize an Internal Revenue Code
Section 468B settlement trust or other acceptable security mechanism
that allows the agency to utilize the earmarked funds to complete the
cleanup if there is a default by a party that is contractually
obligated to implement the response plan pursuant to an agreement
under this article. Agreements pursuant to this article shall permit
subordination of the security mechanism to permit financing for site
cleanup.
(6) The person is not potentially liable, or affiliated with a
person who is potentially liable, for the release at issue through
any of the following circumstances:
(A) A direct or indirect familial relationship.
(B) A contractual, corporate, or financial relationship, unless
the contractual, corporate, or financial relationship is created by
the instruments by which the person obtains control and implements
the development of the site, or is created by a contract for the sale
of goods or services.
(C) The result of a reorganization of a business entity that was
potentially liable for the hazardous substances at issue.
(c) For the purpose of this article, "release" does not include
passive migration.
(d) "Site" shall have the definition set forth in Section
25395.79.2, except that the exclusion for petroleum sites set forth
in paragraph (3) of subdivision (b) of that section shall not apply.
25395.103. (a) A bona fide ground tenant who seeks to qualify for
the immunity pursuant to Section 25395.104 shall make all appropriate
inquiries, and shall enter into an agreement pursuant to this
article with an agency, and one or more entities that agree to take
responsibility for implementing a site assessment and response plan
pursuant to subdivision (b). The entity shall be one of the
following:
(1) The site owner.
(2) A redevelopment agency.
(3) A city or county.
(b) Except as otherwise provided in subdivision (c), an agreement
entered into pursuant to this article shall provide that the entity
that accepts responsibility for the site assessment and response plan
shall conduct a site assessment that substantially complies with the
requirements of Section 25395.94 and implement a response plan that
substantially complies with the requirements of Section 25395.96. For
purposes of any health risk assessment, as specified in paragraph
(2) of subdivision (a) of Section 25395.94, that is conducted for a
site subject to this article, the intended site occupants shall
include any person who is expected to reside at, work at, or
otherwise physically cross onto, the boundaries of the site. Both the
site assessment and the response plan shall be approved by the
agency. Except as necessary to comply with provisions of this article
that differ from Article 6 (commencing with Section 25395.90),
agreements pursuant to this article shall substantially conform to
agreements developed to implement Article 6 (commencing with Section
25395.90), and shall specifically include the agency cost
reimbursement provisions required by subdivision (b) of Section
25395.93.
(c) An agreement entered into pursuant to this article shall
provide that the bona fide ground tenant is responsible to the agency
for only the portions of the site assessment and the portions of the
response plan that the agency determines to be necessary to allow
the site to be used for its intended purposes without unreasonable
risk to the human health and safety of the intended site occupants.
The bona fide ground tenant shall not be responsible to the agency
for any other assessment or remediation of soil, soil gas,
groundwater, or other media at the site; nor for any assessment or
remediation adjacent to, or in the vicinity of, the site. The
agreement shall also specify the portion of the site assessment and
the response plan to be implemented by the party other than the bona
fide ground tenant.
(d) Before finalizing the agreement, the agency shall notify other
appropriate agencies, including the host jurisdiction. The agency
shall keep, in a permanent archive, copies of all finalized
agreements entered into pursuant to this article.
(e) Agreements entered under this article shall not be subject to
Chapter 2 (commencing with Section 10290) of Part 2 of Division 2 of
the Public Contract Code.
(f) A person who enters into an agreement under this article shall
submit sufficient information to the agency for the agency to
determine whether the site is eligible, whether the person meets the
conditions to qualify as a bona fide ground tenant, and to prepare an
agreement pursuant to this section.
25395.104. (a) Except as otherwise provided in this section, a bona
fide ground tenant shall qualify for the following immunities:
(1) The bona fide ground tenant shall not be liable under any
applicable statute for a claim made by a person, other than an
agency, for response costs or other relief associated with a release
or threatened release of a hazardous material at the site once the
bona fide ground tenant obtains a certification pursuant to
subdivision (b) or (c) that the immunity provided by this section has
attached.
(2) (A) Except as provided in subparagraph (B), an agency shall
not, subsequent to the date of the agreement, take any action under
any applicable statute to require a bona fide ground tenant to take a
response action on account of a release or threatened release of a
hazardous material at a site.
(B) The agency that entered into the agreement pursuant to this
article may take action under any applicable statute to enforce the
conditions imposed on the bona fide ground tenant pursuant to the
agreement.
(b) Except as provided in subparagraph (B) of paragraph (2) of
subdivision (a), the immunity provided in this section shall attach
to a bona fide ground tenant once the agency certifies in writing
that all of the following have occurred:
(1) A site assessment has been completed sufficient for the agency
to determine the remedial measures necessary to allow the site to be
used for its intended purposes without unreasonable risk to the
human health and safety of the intended site occupants.
(2) Except for site monitoring, reporting, institutional controls,
operation and maintenance activities, and other ongoing obligations
of the bona fide ground tenant, if any, the portion of the site
investigation and the response plan necessary to allow the site to be
used for its intended purposes without unreasonable risk to the
human health and safety of the intended site occupants, including any
confirmation sampling required by the agency to confirm that this
standard has been met, has been implemented to the agency's
satisfaction.
(3) To the extent required in the agreement entered into pursuant
to this article, all wells, piping, extraction systems, or similar
materials or equipment required for the conduct of remediation
efforts to be performed by a person other than the bona fide ground
tenant have either been installed to the agency's satisfaction or
have been accounted for to the agency's satisfaction in site
development plans and specifications.
(4) If applicable, an instrument that restricts or imposes
obligations on the present of future uses or activities on the site
has been executed and recorded pursuant to Section 1471 of the Civil
Code.
(c) A party to an agreement pursuant to this article may request
the agency to issue a written certification confirming that the
conditions stated in subdivision (b) have been met and that the
immunity provided for in this section is in effect. The agency shall
provide this certification within 60 days of the date it finds that
the conditions stated in subdivision (b) have been met.
(d) The agency that issued a certification pursuant to subdivision
(c) may withdraw that certification if it first provides reasonable
notice and opportunity for the bona fide ground tenant to take action
to prevent the withdrawal, and subsequent to the notice and cure
opportunity makes any of the following findings:
(1) A material deviation from those requirements applicable to the
bona fide ground tenant under the agreement entered into pursuant to
this article that has not been approved by the agency exists and
continues to exist subsequent to the notice and cure period.
(2) The bona fide ground tenant induced the agency to issue the
certification by fraud, or intentional nondisclosure or
misrepresentation.
(e) Upon the agency's certification pursuant to subdivision (c),
the immunity provided in this section extends to all of the
following:
(1) The bona fide ground tenant and any successor who demonstrates
to the agency that the person meets the qualifying conditions of
subdivision (b) of Section 25395.102 and subdivisions (c), (d), (e),
and (f) of Section 25395.80 and who assumes the bona fide ground
tenant's obligations of any agreement entered into pursuant to this
article.
(2) A person who provides financing to a person specified in
paragraph (1).
(f) The immunity provided in this section does not extend to, and
may not be transferred to, a person who was a responsible party, as
that term is defined in Section 25323.5 for the release at the site
prior to acquiring an interest in the site from the bona fide ground
tenant or providing financing as specified in paragraph (3) of
subdivision (e).
(g) The immunity provided in this section shall be in addition to
any other immunity provided by law.
(h) This section shall not modify or limit the existing authority
of a state or local agency to impose a condition on the issuance of a
discretionary permit relating to the development, use, or occupancy
of a site.
(i) This section shall not relieve a bona fide ground tenant from
reporting, disclosure, and notification requirements under any
applicable statute.
(j) The entry into an agreement pursuant to this article shall not
constitute an admission of any fact or liability or conclusion of
law for any purpose or proceeding and a person who enters into an
agreement under this article shall not be deemed liable under any
other provision of law solely by reason of entering into the
agreement.
(k) If the use of the property changes, after a response plan is
approved, to a use that requires a higher level of protection, the
agency may require the preparation and implementation of a new
response plan pursuant to this article.
(l) A bona fide ground tenant that purchases a site subsequent to
leasing, or taking an easement in the site, may convert its status to
that of a bona fide purchaser pursuant to Article 6 (commencing with
Section 25395.90) if the bona fide ground tenant otherwise meets the
requirements of Section 25395.69 and Article 6 (commencing with
Section 25395.90). Upon the conversion, the bona fide ground tenant
shall qualify for any and all immunities available to a bona fide
purchaser under this chapter.
(m) If the response plan relies on the use of institutional or
engineering controls to make the site suitable for its intended
purposes without unreasonable risk to the human health and safety of
the intended occupants of the site, the bona fide ground tenant
seeking immunity shall provide any applicable financial assurances,
using financial assurance guidelines and mechanisms approved by a
board, department, or organization of the California Environmental
Protection Agency; periodic reports as required by the agency to
demonstrate that there remains no unreasonable risk to the human
health and safety of the intended occupants. The bona fide ground
tenant shall not make any change in use of the site that is
inconsistent with any land use control recorded for the site unless
the change is approved by the agency pursuant to Sections 25233 and
25234 or, in the case of the board or a regional board, substantially
similar procedures.
25395.105. (a) Notwithstanding subdivision (b) of Section
25395.102, on and after the date when the immunity specified in
Section 25395.104 attaches, a person shall remain eligible for
immunity if a release of hazardous materials at the site during a
response action is de minimis and the agency determines that all
necessary response actions to address the release have been taken.
(b) Notwithstanding subdivision (b) of Section 25395.102 with
respect to a release of hazardous materials at the site that is not
characterized in or through the site investigation or the response
plan, a person shall remain eligible for the immunity provided in
Section 25395.104, if the person takes response actions with respect
to the release of hazardous materials that the agency determines to
be necessary to prevent unreasonable risk to the human health and
safety of the intended site occupants specified in the agreement
entered into pursuant to this article.
(c) Notwithstanding subdivision (b) of Section 25395.102, on and
after the date when the immunity specified in Section 25395.104
attaches, a person shall remain eligible for immunity obtained
pursuant to this article with regard to a release that is the subject
of a certificate of completion and immunities issued pursuant to
Section 25395.104. If the person causes or contributes to a release
of a hazardous material, other than a de minimis release, the person
shall be responsible for responding to that release in accordance
with all applicable law.
25395.106. (a) This article does not provide immunity from any of
the following:
(1) Liability for bodily injury or wrongful death.
(2) A requirement imposed under Chapter 6.5 (commencing with
Section 25100), including, but not limited to, corrective action and
closure and postclosure requirements.
(3) A criminal act.
(4) A permit violation.
(5) A contractual indemnity agreement between a purchaser and
seller of real property.
(6) New releases, other than de minimis releases, of hazardous
materials that are caused or contributed to by a bona fide ground
tenant.
(b) This article does not limit the authority of an agency to
conduct a response action that is necessary to protect public health
and safety or the environment pursuant to an applicable statute.
(c) This article does not do either of the following:
(1) Limit a defense to liability that may be available to a person
under any other provision of law.
(2) Impose a new obligation on a bona fide ground tenant other
than those specifically assumed by the bona fide ground tenant under
an agreement entered into pursuant to this article.
HEALTH AND SAFETY CODE
SECTION 25395.102-25395.106
25395.102. (a) Except as otherwise provided in this article, the
definitions in Article 2 (commencing with Section 25395.63) and
Article 6 (commencing with Section 25395.90) shall govern the
interpretation of this article.
(b) "Bona fide ground tenant" means a person who establishes by a
preponderance of evidence and maintains all of the following:
(1) The person acquires a nonfee interest in, and control of, the
real property at a site on or after January 1, 2007, pursuant to one
of the following:
(A) A ground lease with a term of 25 years or more.
(B) An easement with a term of 25 years or more.
(C) Any other legal means for site access and use that provides
for a term of 25 years or more, and is acceptable to the agency
entering into an agreement pursuant to this article.
(2) The person is in compliance with subdivisions (c), (d), (e),
and (f) of Section 25395.80.
(3) All releases of hazardous materials at the site occurred
before the person obtained legal access to and control over the site,
except for a release that is of a type, nature or amount that does
not require reporting to a regulatory authority pursuant to
applicable law or other applicable statutory or regulatory reporting
requirements and for which the agency determines all appropriate
actions have been taken.
(4) The person did not cause or contribute to a release of
hazardous materials at the site, other than a release that is of a
type, nature or amount that does not require reporting to a
regulatory authority pursuant to applicable law or other applicable
statutory or regulatory reporting requirements.
(5) (A) The person has contractually agreed with one or more
persons or entities set forth in subdivision (a) of Section 25395.103
that either of the following revenue sources be dedicated to, or
pledged to secure a loan the proceeds of which are dedicated to,
implementation of the response plan approved pursuant to this
article:
(i) All payments by that person to the site owner, at least until
such time as a response plan has been approved by the agency and the
agency has determined that something less than all of the payments
are sufficient to implement the response plan.
(ii) Any alternate assets or revenue streams that are acceptable
to the agency.
(B) To ensure that the revenue stream required by subparagraph (A)
remains available to implement the response plan approved pursuant
to this article, the person may utilize an Internal Revenue Code
Section 468B settlement trust or other acceptable security mechanism
that allows the agency to utilize the earmarked funds to complete the
cleanup if there is a default by a party that is contractually
obligated to implement the response plan pursuant to an agreement
under this article. Agreements pursuant to this article shall permit
subordination of the security mechanism to permit financing for site
cleanup.
(6) The person is not potentially liable, or affiliated with a
person who is potentially liable, for the release at issue through
any of the following circumstances:
(A) A direct or indirect familial relationship.
(B) A contractual, corporate, or financial relationship, unless
the contractual, corporate, or financial relationship is created by
the instruments by which the person obtains control and implements
the development of the site, or is created by a contract for the sale
of goods or services.
(C) The result of a reorganization of a business entity that was
potentially liable for the hazardous substances at issue.
(c) For the purpose of this article, "release" does not include
passive migration.
(d) "Site" shall have the definition set forth in Section
25395.79.2, except that the exclusion for petroleum sites set forth
in paragraph (3) of subdivision (b) of that section shall not apply.
25395.103. (a) A bona fide ground tenant who seeks to qualify for
the immunity pursuant to Section 25395.104 shall make all appropriate
inquiries, and shall enter into an agreement pursuant to this
article with an agency, and one or more entities that agree to take
responsibility for implementing a site assessment and response plan
pursuant to subdivision (b). The entity shall be one of the
following:
(1) The site owner.
(2) A redevelopment agency.
(3) A city or county.
(b) Except as otherwise provided in subdivision (c), an agreement
entered into pursuant to this article shall provide that the entity
that accepts responsibility for the site assessment and response plan
shall conduct a site assessment that substantially complies with the
requirements of Section 25395.94 and implement a response plan that
substantially complies with the requirements of Section 25395.96. For
purposes of any health risk assessment, as specified in paragraph
(2) of subdivision (a) of Section 25395.94, that is conducted for a
site subject to this article, the intended site occupants shall
include any person who is expected to reside at, work at, or
otherwise physically cross onto, the boundaries of the site. Both the
site assessment and the response plan shall be approved by the
agency. Except as necessary to comply with provisions of this article
that differ from Article 6 (commencing with Section 25395.90),
agreements pursuant to this article shall substantially conform to
agreements developed to implement Article 6 (commencing with Section
25395.90), and shall specifically include the agency cost
reimbursement provisions required by subdivision (b) of Section
25395.93.
(c) An agreement entered into pursuant to this article shall
provide that the bona fide ground tenant is responsible to the agency
for only the portions of the site assessment and the portions of the
response plan that the agency determines to be necessary to allow
the site to be used for its intended purposes without unreasonable
risk to the human health and safety of the intended site occupants.
The bona fide ground tenant shall not be responsible to the agency
for any other assessment or remediation of soil, soil gas,
groundwater, or other media at the site; nor for any assessment or
remediation adjacent to, or in the vicinity of, the site. The
agreement shall also specify the portion of the site assessment and
the response plan to be implemented by the party other than the bona
fide ground tenant.
(d) Before finalizing the agreement, the agency shall notify other
appropriate agencies, including the host jurisdiction. The agency
shall keep, in a permanent archive, copies of all finalized
agreements entered into pursuant to this article.
(e) Agreements entered under this article shall not be subject to
Chapter 2 (commencing with Section 10290) of Part 2 of Division 2 of
the Public Contract Code.
(f) A person who enters into an agreement under this article shall
submit sufficient information to the agency for the agency to
determine whether the site is eligible, whether the person meets the
conditions to qualify as a bona fide ground tenant, and to prepare an
agreement pursuant to this section.
25395.104. (a) Except as otherwise provided in this section, a bona
fide ground tenant shall qualify for the following immunities:
(1) The bona fide ground tenant shall not be liable under any
applicable statute for a claim made by a person, other than an
agency, for response costs or other relief associated with a release
or threatened release of a hazardous material at the site once the
bona fide ground tenant obtains a certification pursuant to
subdivision (b) or (c) that the immunity provided by this section has
attached.
(2) (A) Except as provided in subparagraph (B), an agency shall
not, subsequent to the date of the agreement, take any action under
any applicable statute to require a bona fide ground tenant to take a
response action on account of a release or threatened release of a
hazardous material at a site.
(B) The agency that entered into the agreement pursuant to this
article may take action under any applicable statute to enforce the
conditions imposed on the bona fide ground tenant pursuant to the
agreement.
(b) Except as provided in subparagraph (B) of paragraph (2) of
subdivision (a), the immunity provided in this section shall attach
to a bona fide ground tenant once the agency certifies in writing
that all of the following have occurred:
(1) A site assessment has been completed sufficient for the agency
to determine the remedial measures necessary to allow the site to be
used for its intended purposes without unreasonable risk to the
human health and safety of the intended site occupants.
(2) Except for site monitoring, reporting, institutional controls,
operation and maintenance activities, and other ongoing obligations
of the bona fide ground tenant, if any, the portion of the site
investigation and the response plan necessary to allow the site to be
used for its intended purposes without unreasonable risk to the
human health and safety of the intended site occupants, including any
confirmation sampling required by the agency to confirm that this
standard has been met, has been implemented to the agency's
satisfaction.
(3) To the extent required in the agreement entered into pursuant
to this article, all wells, piping, extraction systems, or similar
materials or equipment required for the conduct of remediation
efforts to be performed by a person other than the bona fide ground
tenant have either been installed to the agency's satisfaction or
have been accounted for to the agency's satisfaction in site
development plans and specifications.
(4) If applicable, an instrument that restricts or imposes
obligations on the present of future uses or activities on the site
has been executed and recorded pursuant to Section 1471 of the Civil
Code.
(c) A party to an agreement pursuant to this article may request
the agency to issue a written certification confirming that the
conditions stated in subdivision (b) have been met and that the
immunity provided for in this section is in effect. The agency shall
provide this certification within 60 days of the date it finds that
the conditions stated in subdivision (b) have been met.
(d) The agency that issued a certification pursuant to subdivision
(c) may withdraw that certification if it first provides reasonable
notice and opportunity for the bona fide ground tenant to take action
to prevent the withdrawal, and subsequent to the notice and cure
opportunity makes any of the following findings:
(1) A material deviation from those requirements applicable to the
bona fide ground tenant under the agreement entered into pursuant to
this article that has not been approved by the agency exists and
continues to exist subsequent to the notice and cure period.
(2) The bona fide ground tenant induced the agency to issue the
certification by fraud, or intentional nondisclosure or
misrepresentation.
(e) Upon the agency's certification pursuant to subdivision (c),
the immunity provided in this section extends to all of the
following:
(1) The bona fide ground tenant and any successor who demonstrates
to the agency that the person meets the qualifying conditions of
subdivision (b) of Section 25395.102 and subdivisions (c), (d), (e),
and (f) of Section 25395.80 and who assumes the bona fide ground
tenant's obligations of any agreement entered into pursuant to this
article.
(2) A person who provides financing to a person specified in
paragraph (1).
(f) The immunity provided in this section does not extend to, and
may not be transferred to, a person who was a responsible party, as
that term is defined in Section 25323.5 for the release at the site
prior to acquiring an interest in the site from the bona fide ground
tenant or providing financing as specified in paragraph (3) of
subdivision (e).
(g) The immunity provided in this section shall be in addition to
any other immunity provided by law.
(h) This section shall not modify or limit the existing authority
of a state or local agency to impose a condition on the issuance of a
discretionary permit relating to the development, use, or occupancy
of a site.
(i) This section shall not relieve a bona fide ground tenant from
reporting, disclosure, and notification requirements under any
applicable statute.
(j) The entry into an agreement pursuant to this article shall not
constitute an admission of any fact or liability or conclusion of
law for any purpose or proceeding and a person who enters into an
agreement under this article shall not be deemed liable under any
other provision of law solely by reason of entering into the
agreement.
(k) If the use of the property changes, after a response plan is
approved, to a use that requires a higher level of protection, the
agency may require the preparation and implementation of a new
response plan pursuant to this article.
(l) A bona fide ground tenant that purchases a site subsequent to
leasing, or taking an easement in the site, may convert its status to
that of a bona fide purchaser pursuant to Article 6 (commencing with
Section 25395.90) if the bona fide ground tenant otherwise meets the
requirements of Section 25395.69 and Article 6 (commencing with
Section 25395.90). Upon the conversion, the bona fide ground tenant
shall qualify for any and all immunities available to a bona fide
purchaser under this chapter.
(m) If the response plan relies on the use of institutional or
engineering controls to make the site suitable for its intended
purposes without unreasonable risk to the human health and safety of
the intended occupants of the site, the bona fide ground tenant
seeking immunity shall provide any applicable financial assurances,
using financial assurance guidelines and mechanisms approved by a
board, department, or organization of the California Environmental
Protection Agency; periodic reports as required by the agency to
demonstrate that there remains no unreasonable risk to the human
health and safety of the intended occupants. The bona fide ground
tenant shall not make any change in use of the site that is
inconsistent with any land use control recorded for the site unless
the change is approved by the agency pursuant to Sections 25233 and
25234 or, in the case of the board or a regional board, substantially
similar procedures.
25395.105. (a) Notwithstanding subdivision (b) of Section
25395.102, on and after the date when the immunity specified in
Section 25395.104 attaches, a person shall remain eligible for
immunity if a release of hazardous materials at the site during a
response action is de minimis and the agency determines that all
necessary response actions to address the release have been taken.
(b) Notwithstanding subdivision (b) of Section 25395.102 with
respect to a release of hazardous materials at the site that is not
characterized in or through the site investigation or the response
plan, a person shall remain eligible for the immunity provided in
Section 25395.104, if the person takes response actions with respect
to the release of hazardous materials that the agency determines to
be necessary to prevent unreasonable risk to the human health and
safety of the intended site occupants specified in the agreement
entered into pursuant to this article.
(c) Notwithstanding subdivision (b) of Section 25395.102, on and
after the date when the immunity specified in Section 25395.104
attaches, a person shall remain eligible for immunity obtained
pursuant to this article with regard to a release that is the subject
of a certificate of completion and immunities issued pursuant to
Section 25395.104. If the person causes or contributes to a release
of a hazardous material, other than a de minimis release, the person
shall be responsible for responding to that release in accordance
with all applicable law.
25395.106. (a) This article does not provide immunity from any of
the following:
(1) Liability for bodily injury or wrongful death.
(2) A requirement imposed under Chapter 6.5 (commencing with
Section 25100), including, but not limited to, corrective action and
closure and postclosure requirements.
(3) A criminal act.
(4) A permit violation.
(5) A contractual indemnity agreement between a purchaser and
seller of real property.
(6) New releases, other than de minimis releases, of hazardous
materials that are caused or contributed to by a bona fide ground
tenant.
(b) This article does not limit the authority of an agency to
conduct a response action that is necessary to protect public health
and safety or the environment pursuant to an applicable statute.
(c) This article does not do either of the following:
(1) Limit a defense to liability that may be available to a person
under any other provision of law.
(2) Impose a new obligation on a bona fide ground tenant other
than those specifically assumed by the bona fide ground tenant under
an agreement entered into pursuant to this article.
HEALTH AND SAFETY CODE
SECTION 25395.102-25395.106
25395.102. (a) Except as otherwise provided in this article, the
definitions in Article 2 (commencing with Section 25395.63) and
Article 6 (commencing with Section 25395.90) shall govern the
interpretation of this article.
(b) "Bona fide ground tenant" means a person who establishes by a
preponderance of evidence and maintains all of the following:
(1) The person acquires a nonfee interest in, and control of, the
real property at a site on or after January 1, 2007, pursuant to one
of the following:
(A) A ground lease with a term of 25 years or more.
(B) An easement with a term of 25 years or more.
(C) Any other legal means for site access and use that provides
for a term of 25 years or more, and is acceptable to the agency
entering into an agreement pursuant to this article.
(2) The person is in compliance with subdivisions (c), (d), (e),
and (f) of Section 25395.80.
(3) All releases of hazardous materials at the site occurred
before the person obtained legal access to and control over the site,
except for a release that is of a type, nature or amount that does
not require reporting to a regulatory authority pursuant to
applicable law or other applicable statutory or regulatory reporting
requirements and for which the agency determines all appropriate
actions have been taken.
(4) The person did not cause or contribute to a release of
hazardous materials at the site, other than a release that is of a
type, nature or amount that does not require reporting to a
regulatory authority pursuant to applicable law or other applicable
statutory or regulatory reporting requirements.
(5) (A) The person has contractually agreed with one or more
persons or entities set forth in subdivision (a) of Section 25395.103
that either of the following revenue sources be dedicated to, or
pledged to secure a loan the proceeds of which are dedicated to,
implementation of the response plan approved pursuant to this
article:
(i) All payments by that person to the site owner, at least until
such time as a response plan has been approved by the agency and the
agency has determined that something less than all of the payments
are sufficient to implement the response plan.
(ii) Any alternate assets or revenue streams that are acceptable
to the agency.
(B) To ensure that the revenue stream required by subparagraph (A)
remains available to implement the response plan approved pursuant
to this article, the person may utilize an Internal Revenue Code
Section 468B settlement trust or other acceptable security mechanism
that allows the agency to utilize the earmarked funds to complete the
cleanup if there is a default by a party that is contractually
obligated to implement the response plan pursuant to an agreement
under this article. Agreements pursuant to this article shall permit
subordination of the security mechanism to permit financing for site
cleanup.
(6) The person is not potentially liable, or affiliated with a
person who is potentially liable, for the release at issue through
any of the following circumstances:
(A) A direct or indirect familial relationship.
(B) A contractual, corporate, or financial relationship, unless
the contractual, corporate, or financial relationship is created by
the instruments by which the person obtains control and implements
the development of the site, or is created by a contract for the sale
of goods or services.
(C) The result of a reorganization of a business entity that was
potentially liable for the hazardous substances at issue.
(c) For the purpose of this article, "release" does not include
passive migration.
(d) "Site" shall have the definition set forth in Section
25395.79.2, except that the exclusion for petroleum sites set forth
in paragraph (3) of subdivision (b) of that section shall not apply.
25395.103. (a) A bona fide ground tenant who seeks to qualify for
the immunity pursuant to Section 25395.104 shall make all appropriate
inquiries, and shall enter into an agreement pursuant to this
article with an agency, and one or more entities that agree to take
responsibility for implementing a site assessment and response plan
pursuant to subdivision (b). The entity shall be one of the
following:
(1) The site owner.
(2) A redevelopment agency.
(3) A city or county.
(b) Except as otherwise provided in subdivision (c), an agreement
entered into pursuant to this article shall provide that the entity
that accepts responsibility for the site assessment and response plan
shall conduct a site assessment that substantially complies with the
requirements of Section 25395.94 and implement a response plan that
substantially complies with the requirements of Section 25395.96. For
purposes of any health risk assessment, as specified in paragraph
(2) of subdivision (a) of Section 25395.94, that is conducted for a
site subject to this article, the intended site occupants shall
include any person who is expected to reside at, work at, or
otherwise physically cross onto, the boundaries of the site. Both the
site assessment and the response plan shall be approved by the
agency. Except as necessary to comply with provisions of this article
that differ from Article 6 (commencing with Section 25395.90),
agreements pursuant to this article shall substantially conform to
agreements developed to implement Article 6 (commencing with Section
25395.90), and shall specifically include the agency cost
reimbursement provisions required by subdivision (b) of Section
25395.93.
(c) An agreement entered into pursuant to this article shall
provide that the bona fide ground tenant is responsible to the agency
for only the portions of the site assessment and the portions of the
response plan that the agency determines to be necessary to allow
the site to be used for its intended purposes without unreasonable
risk to the human health and safety of the intended site occupants.
The bona fide ground tenant shall not be responsible to the agency
for any other assessment or remediation of soil, soil gas,
groundwater, or other media at the site; nor for any assessment or
remediation adjacent to, or in the vicinity of, the site. The
agreement shall also specify the portion of the site assessment and
the response plan to be implemented by the party other than the bona
fide ground tenant.
(d) Before finalizing the agreement, the agency shall notify other
appropriate agencies, including the host jurisdiction. The agency
shall keep, in a permanent archive, copies of all finalized
agreements entered into pursuant to this article.
(e) Agreements entered under this article shall not be subject to
Chapter 2 (commencing with Section 10290) of Part 2 of Division 2 of
the Public Contract Code.
(f) A person who enters into an agreement under this article shall
submit sufficient information to the agency for the agency to
determine whether the site is eligible, whether the person meets the
conditions to qualify as a bona fide ground tenant, and to prepare an
agreement pursuant to this section.
25395.104. (a) Except as otherwise provided in this section, a bona
fide ground tenant shall qualify for the following immunities:
(1) The bona fide ground tenant shall not be liable under any
applicable statute for a claim made by a person, other than an
agency, for response costs or other relief associated with a release
or threatened release of a hazardous material at the site once the
bona fide ground tenant obtains a certification pursuant to
subdivision (b) or (c) that the immunity provided by this section has
attached.
(2) (A) Except as provided in subparagraph (B), an agency shall
not, subsequent to the date of the agreement, take any action under
any applicable statute to require a bona fide ground tenant to take a
response action on account of a release or threatened release of a
hazardous material at a site.
(B) The agency that entered into the agreement pursuant to this
article may take action under any applicable statute to enforce the
conditions imposed on the bona fide ground tenant pursuant to the
agreement.
(b) Except as provided in subparagraph (B) of paragraph (2) of
subdivision (a), the immunity provided in this section shall attach
to a bona fide ground tenant once the agency certifies in writing
that all of the following have occurred:
(1) A site assessment has been completed sufficient for the agency
to determine the remedial measures necessary to allow the site to be
used for its intended purposes without unreasonable risk to the
human health and safety of the intended site occupants.
(2) Except for site monitoring, reporting, institutional controls,
operation and maintenance activities, and other ongoing obligations
of the bona fide ground tenant, if any, the portion of the site
investigation and the response plan necessary to allow the site to be
used for its intended purposes without unreasonable risk to the
human health and safety of the intended site occupants, including any
confirmation sampling required by the agency to confirm that this
standard has been met, has been implemented to the agency's
satisfaction.
(3) To the extent required in the agreement entered into pursuant
to this article, all wells, piping, extraction systems, or similar
materials or equipment required for the conduct of remediation
efforts to be performed by a person other than the bona fide ground
tenant have either been installed to the agency's satisfaction or
have been accounted for to the agency's satisfaction in site
development plans and specifications.
(4) If applicable, an instrument that restricts or imposes
obligations on the present of future uses or activities on the site
has been executed and recorded pursuant to Section 1471 of the Civil
Code.
(c) A party to an agreement pursuant to this article may request
the agency to issue a written certification confirming that the
conditions stated in subdivision (b) have been met and that the
immunity provided for in this section is in effect. The agency shall
provide this certification within 60 days of the date it finds that
the conditions stated in subdivision (b) have been met.
(d) The agency that issued a certification pursuant to subdivision
(c) may withdraw that certification if it first provides reasonable
notice and opportunity for the bona fide ground tenant to take action
to prevent the withdrawal, and subsequent to the notice and cure
opportunity makes any of the following findings:
(1) A material deviation from those requirements applicable to the
bona fide ground tenant under the agreement entered into pursuant to
this article that has not been approved by the agency exists and
continues to exist subsequent to the notice and cure period.
(2) The bona fide ground tenant induced the agency to issue the
certification by fraud, or intentional nondisclosure or
misrepresentation.
(e) Upon the agency's certification pursuant to subdivision (c),
the immunity provided in this section extends to all of the
following:
(1) The bona fide ground tenant and any successor who demonstrates
to the agency that the person meets the qualifying conditions of
subdivision (b) of Section 25395.102 and subdivisions (c), (d), (e),
and (f) of Section 25395.80 and who assumes the bona fide ground
tenant's obligations of any agreement entered into pursuant to this
article.
(2) A person who provides financing to a person specified in
paragraph (1).
(f) The immunity provided in this section does not extend to, and
may not be transferred to, a person who was a responsible party, as
that term is defined in Section 25323.5 for the release at the site
prior to acquiring an interest in the site from the bona fide ground
tenant or providing financing as specified in paragraph (3) of
subdivision (e).
(g) The immunity provided in this section shall be in addition to
any other immunity provided by law.
(h) This section shall not modify or limit the existing authority
of a state or local agency to impose a condition on the issuance of a
discretionary permit relating to the development, use, or occupancy
of a site.
(i) This section shall not relieve a bona fide ground tenant from
reporting, disclosure, and notification requirements under any
applicable statute.
(j) The entry into an agreement pursuant to this article shall not
constitute an admission of any fact or liability or conclusion of
law for any purpose or proceeding and a person who enters into an
agreement under this article shall not be deemed liable under any
other provision of law solely by reason of entering into the
agreement.
(k) If the use of the property changes, after a response plan is
approved, to a use that requires a higher level of protection, the
agency may require the preparation and implementation of a new
response plan pursuant to this article.
(l) A bona fide ground tenant that purchases a site subsequent to
leasing, or taking an easement in the site, may convert its status to
that of a bona fide purchaser pursuant to Article 6 (commencing with
Section 25395.90) if the bona fide ground tenant otherwise meets the
requirements of Section 25395.69 and Article 6 (commencing with
Section 25395.90). Upon the conversion, the bona fide ground tenant
shall qualify for any and all immunities available to a bona fide
purchaser under this chapter.
(m) If the response plan relies on the use of institutional or
engineering controls to make the site suitable for its intended
purposes without unreasonable risk to the human health and safety of
the intended occupants of the site, the bona fide ground tenant
seeking immunity shall provide any applicable financial assurances,
using financial assurance guidelines and mechanisms approved by a
board, department, or organization of the California Environmental
Protection Agency; periodic reports as required by the agency to
demonstrate that there remains no unreasonable risk to the human
health and safety of the intended occupants. The bona fide ground
tenant shall not make any change in use of the site that is
inconsistent with any land use control recorded for the site unless
the change is approved by the agency pursuant to Sections 25233 and
25234 or, in the case of the board or a regional board, substantially
similar procedures.
25395.105. (a) Notwithstanding subdivision (b) of Section
25395.102, on and after the date when the immunity specified in
Section 25395.104 attaches, a person shall remain eligible for
immunity if a release of hazardous materials at the site during a
response action is de minimis and the agency determines that all
necessary response actions to address the release have been taken.
(b) Notwithstanding subdivision (b) of Section 25395.102 with
respect to a release of hazardous materials at the site that is not
characterized in or through the site investigation or the response
plan, a person shall remain eligible for the immunity provided in
Section 25395.104, if the person takes response actions with respect
to the release of hazardous materials that the agency determines to
be necessary to prevent unreasonable risk to the human health and
safety of the intended site occupants specified in the agreement
entered into pursuant to this article.
(c) Notwithstanding subdivision (b) of Section 25395.102, on and
after the date when the immunity specified in Section 25395.104
attaches, a person shall remain eligible for immunity obtained
pursuant to this article with regard to a release that is the subject
of a certificate of completion and immunities issued pursuant to
Section 25395.104. If the person causes or contributes to a release
of a hazardous material, other than a de minimis release, the person
shall be responsible for responding to that release in accordance
with all applicable law.
25395.106. (a) This article does not provide immunity from any of
the following:
(1) Liability for bodily injury or wrongful death.
(2) A requirement imposed under Chapter 6.5 (commencing with
Section 25100), including, but not limited to, corrective action and
closure and postclosure requirements.
(3) A criminal act.
(4) A permit violation.
(5) A contractual indemnity agreement between a purchaser and
seller of real property.
(6) New releases, other than de minimis releases, of hazardous
materials that are caused or contributed to by a bona fide ground
tenant.
(b) This article does not limit the authority of an agency to
conduct a response action that is necessary to protect public health
and safety or the environment pursuant to an applicable statute.
(c) This article does not do either of the following:
(1) Limit a defense to liability that may be available to a person
under any other provision of law.
(2) Impose a new obligation on a bona fide ground tenant other
than those specifically assumed by the bona fide ground tenant under
an agreement entered into pursuant to this article.
